After Cheshire West – Where now?
The Cheshire West case is primarily of interest as it looked to clarify the point at which a person who has lost mental capacity is being deprived of his liberty by their carers. The Court of Protection decision was overturned by the Supreme Court.
As a result of the decision in March 2014 there is now a new definition of ‘deprivation of liberty’, the test which is outlined in the judgment will mean that a larger number of vulnerable clients are now more likely to be deprived of their liberty. There are two parts to the new definition, they must co-exist to constitute a deprivation of liberty. If a person is subject to continuous supervision and control and they are not free to leave, then they are deprived of liberty.
In her judgment Lady Hale responded to the question of whether liberty means something different to an adult who is for reasons of disability unable to take advantage of it, or if liberty means the same for all? She said "that the first and most fundamental question is whether the concept of physical liberty protected by article 5 of the European Convention on Human Rights is the same for everyone, regardless of whether or not they are mentally or physically disabled.”
Section 64(5) of the Mental Capacity Act states that references to a deprivation of a person's liberty have the same meaning as in article 5 (1) of the Human Rights Convention. Before the Cheshire West case the European Court of Human Rights in Strasbourg summarised the general principles in the context of people with mental disorders or disabilities across a number of cases
- The person must have a concrete situation and account must be taken of a whole range of criteria such as the type deviation effects and manner of implementation of the measures in question [- Guzzardi v Italy (1980) 3 EHRR 333 paras 92-93.]
- A person could be regarded as having been detained even during a period when he was in an open hospital ward with regular unescorted access to the unsecured hospital grounds and the possibility of unescorted leave outside the hospital.
- In relation to placement of mentally disordered persons in an institution, it should not only be the objective element of a person's confinement that should be taken into account, but also the subjective element, that he has not validly consented to the confinement.
- There has been a deprivation of liberty where the patient has either been declared legally incapable and admitted to a psychiatric hospital at his legal representatives request had having unsuccessfully attempted to leave hospital, where he consented to admission but had subsequently attempted to escape, and where the patient was an adult incapable of giving his consent for admission to a psychiatric institution which he had never attempted to leave.
- The right to liberty is too important in a democratic society for a person to lose the benefits of Convention protection, for the single reason that he may have willingly entered into detention, especially when it is not disputed that person is legally incapable of consenting to or disagreeing with the proposed action.
- That in accordance with article 5 (1) there must be a positive obligation on the state to protect the liberty of those within its jurisdiction.
Prior to 19 March 2014, the mechanism for authorising (subject to safeguards) the deprivation of liberty of a person who cannot consent when that is necessary in their best interests for their care or treatment, was provided by amendments made to the Mental Capacity Act 2005 which were enacted on 1 April 2009.
Before this date, a person acting in connection with the care or treatment in the best interests of the incapacitated person could restrain that person if it was to prevent harm to that person and was a proportionate response but could not deprive them of their liberty. The High Court could make an order under its inherent jurisdiction which had the effect of depriving the person concerned of their liberty putting in place as many safe guards as practicable, including provision for review. That the inherent jurisdiction to grant such an order survives in an appropriate situation was confirmed by Baker J in NHS Trust v Dr A (2013).
Most people who suffer a mental disorder are not treated under the Mental Health Act 1983. It does not prevent the informal admission of a patient requiring treatment for mental disorder to any hospital or registered establishment. They may not have resisted nor objected to their admission nor to their continued stay in hospital or care home, and thus this does not give rise to any concern when they have capacity and it is their choice. However, questions could be asked as to how patients should be treated who may be compliant but who do not have the capacity to reach their own decisions about what is happening to them. This is particularly the case so far as they are deprived of their liberty. As there were no safeguards in relation to the deprivation of their liberty this was known as the "Bournewood Gap" as a result of the decision of the European Court of Human Rights. This decided that Mr H L had been deprived of his liberty contrary to Article 5(1) of the European Court of Human Rights as detention was arbitrary and not in accordance with a procedure prescribed by law; the procedure available to Mr H L did not comply with the requirements of Article 5(4) as there was no procedure under which he would seek a merits review of whether the conditions for his detention remained applicable.
Section 50 and schedules 7 and 8 of the Mental Capacity Act 2007 countered this by amending the Mental Capacity Act 2005 rendering it lawful to deprive a person of their liberty either if it is as a consequence of an order of the Court of Protection on a personal welfare matter or, if the deprivation of liberty is in a hospital or care home, a standard or urgent authorisation is in force. The Court of Appeal confirmed that the scheme enacted by these amendments was both compliant with Article 5 (1) of the European Court of Human Rights and thereby plugged the Bournewood Gap.
Cheshire West’s the key feature is the acid test, outlined above. There is a need for a periodic independent check on whether the arrangements made for the person are in their best interests. Such checks need not be as elaborate as those currently provided for the Court of Protection or Deprivation of Liberty Safeguards. Nor should we regard the need for such checks as in anyway stigmatising of them or their carers. It is recognition of their equal dignity and status as human beings like the rest of us.
People who on 18 March would not have been subject to a deprivation of liberty order will now be so. This includes people who, although they lack capacity, are content to be in a care environment and their family is fully supportive of the care their loved ones receive. That will include adults with severe learning disabilities and adults with dementia who cannot be left to leave unescorted because they will be at risk of injury.
Local governments have already indicated that the judgement in the Cheshire West case is likely to lead to a significant change in the way that they make provision for those entrusted to their care and that there will be a significant drain on manpower and financial resources. It's questionable how many local authorities have reacted to this judgement and put the necessary provisions in place. The Government's view is that the number of people who lack capacity to consent to the arrangements made for their care or treatment and who need to be deprived of their liberty in their best interests in hospitals or care homes, should be relatively small. In particular the Government appears to not accept the view expressed by some that every person who lacks capacity to consent to the arrangements made for their care or treatment and who is in a care home from which they are not allowed complete freedom of egress, are inevitably deprived of their liberty within the meaning of Article 5 of the European Court Human Rights.
Another landmark appeal is pending on the ordinary residence test in community care cases –
R. (Cornwall Council) v Secretary of State for Health 2014 which could have an impact on who should shoulder the financial burden for some person who may have required care, soon after moving to a local authority area. Liberty should be for all. Far from disability entitling the state to deny such people human rights; rather it places upon the state, the duty to make reasonable accommodation to cater for the special needs of those with disabilities. It remains to be seen if the Government takes a new look at deprivation of liberty and draws up much needed, fresh, legislation.